The Gilmer Law Firm, PLLC

In the midst of the recession, it was understandable that many people had a tough time finding work - or at least more than part-time work.

Under these circumstances, many sought modification of child support orders. Parents paying child support simply weren't making enough to sustain the orders that had been previously set.

However, as the economy has improved, there may be some parents choosing to stay unreasonably and voluntarily underemployed. In these scenarios, the court will decide the proper amount of support based not on the parent's current income, but rather on his or her assets and earning capacity (as outlined in the 1976 case of Hickland v. Hickland, Appellate Division for the Supreme Court of the State of New York, Third).

The courts will weigh whether the party seeking to lower support payments has made a good faith and diligent effort to obtain further employment, as well as whether positions matching his or her skill sets and in his or her field are readily available and whether any health problems impact one's ability to work.

In the court's view, the scope of the job search has to extend beyond what's simply convenient for the parent so that the child doesn't unfairly burden the economic costs of parental separation. The key question is whether the underemployment is due to economic factors or purely personal choices.

Here, according to court records, the father sought a modification of child support payments on the grounds that his income had significantly fallen in recent years. Although he had retained previous positions as a sales representative at engineering firms, earning an average of $55,000 annually, he was terminated from two of those positions and subsequently opened a wedding photography business.

It was true that he earned substantially less in this field - about $20,000 annually. However, when he secured a job for a loan management firm earning $8.50 an hour (or $17,000 annually), he quit his wedding photography business.

He contended that he was prevented from pursuing other employment because he suffered medical problems (a broken ankle and Crohn's disease). He also argued he could not find other work when he sought it and that a special needs daughter from a previous relationship required an intensive level of care, which he was helping to provide.

But the court ultimately found that he was voluntarily and unreasonably underemployed. In considering the totality of the circumstances, the state high court rejected the father's claims that it was impossible for him to obtain a higher paying job. The court found that the father hadn't made a good faith effort to find anything outside the engineering field, despite the fact that he was qualified to do so. Further, the court ruled his medical conditions were not severe enough to warrant disability that would prevent him from working. And lastly, the court determined that his obligation to his older daughter did not diminish his responsibility to adequately provide for his younger children.

A similar case out of New York in 2011, Szalapski v. Schwartz, resulted in the New York State Supreme Court reaching a similar conclusion regarding a father who sought to lower his support payments. In that case, the father was a physicist who at the time of his divorce earned $82,000 annually. The couple had three children, and support payments were based on his stated income at the time.

The father stated that after this time, he left academics and entered the field of software design, for which he was only marginally qualified. He was later laid off and received unemployment insurance benefits in the amount of $160 weekly, after taxes. The father argued that he had tried to find employment, but had been unable to do so because there was a low demand for someone with his skills in the region. He said when he tried to find other work, he was turned away for being overqualified. However, his most recent interview had been more than year prior to the hearing.

The court ultimately found that his search for employment was not diligent and that he failed to search outside the immediate geographical area. As such, he was deemed voluntarily underemployed and denied a child support modification.

Timely production of ample evidence will be key in determining the outcome in such cases.